SAN FRANCISCO, September 28, 2018 – Federal Judge William H. Orrick (N.D. Cal.) entered a consent decree, yesterday evening, between PG&E and the San Francisco Herring Association (“SHFA”), represented by Stuart G. Gross of Gross & Klein LLP. The consent decree resolves claims brought by SFHA, in 2014, under the federal Clean Water Act and Resource Conservation and Recovery Act, as well as California state public nuisance and negligence law, related to contamination of areas offshore of the Marina and Fisherman’s Wharf neighborhoods of San Francisco, where herring spawn.
SFHA alleged that PG&E’s operation of manufactured gas plants (“MGPs”), in the late 1800’s and early 1900’s, at two locations in the present day Marina neighborhood and at one location in the present day Fisherman’s Wharf neighborhood, resulted in the massive contamination of offshore areas with MGP waste and that onshore MGP waste deposits caused continuing deliveries of contaminated groundwater to the Bay. The MGP waste contains high levels of toxic chemicals, including polyaromatic hydrocarbons (“PAHs”), which studies resulting from the Exxon Valdez and Cosco Busan oil spills have shown are particularly toxic to herring eggs and larvae.
The 98-page consent decree has a 10-year term during which PG&E will be required to conduct extensive sampling and monitoring offshore and along the Bay's perimeter at locations, depths, and using methods that the consent decree specifies in detail. The consent decree contains aggressive action trigger levels for both groundwater and offshore porewater and establishes a detailed mechanism of monitoring and enforcement of PG&E's compliance by SHFA.
In addition to requiring PG&E pay for the costs of addressing the contamination, the consent decree requires that PG&E pay: the cost of establishing a panel that will adjudicate SHFA challenges to PG&E’s compliance with the consent decree; SFHA’s fees and costs incurred in the litigation; as well as another $4.9 million in payments. Those $4.9 million in payments include:
$1.8 million, which will be used to permanently retire commercial herring permits, substantially reducing the fishing pressure on the Bay’s herring stock;
$1.2 million, which will be used by the Estuary and Ocean Science Center, in Tiburon, to conduct eelgrass restoration and research programs in San Francisco Bay, including a project to study the restoration of eelgrass beds that have been destroyed as the result of illegal boat “anchor-outs” in Richardson Bay, offshore of Sausalito;
$1.2 million, which will be used by the California Coastal Conservancy, to advance its project to remove creosote pilings and restore natural habitat at the former Terminal Four wharf in the vicinity of Point San Pablo in Richmond; and
$400,000, which will be used to pay SFHA’s costs incurred in monitoring PG&E’s compliance with the consent decree.
SFHA President Matt Ryan observed, “PG&E knew about this contamination for years and did nothing about it, all the while it was harming the herring stock on which fishermen and wildlife depend. This settlement forces PG&E to finally deal with it, while also forcing PG&E to pay for programs that will help the herring stock and the fishermen who have been harmed.”
SFHA’s attorney Stuart Gross of Gross & Klein commented, “This settlement sends the message that companies who pollute the Bay, no matter how long ago they polluted it or how powerful they are, will be held responsible. San Francisco Bay’s herring fishermen are true stewards of the resources on which their livelihoods depend, and Gross & Klein is honored to have assisted them in this success.”
Gross & Klein LLP also represents SFHA’s co-plaintiff, who will continue to pursue his claims against PG&E, including those concerning contamination of terrestrial areas of the Marina and Fisherman’s Wharf neighborhoods.
Gross & Klein LLP also represents various homeowners and property owners in the Marina neighborhood, in separate cases concerning contamination of their properties. To the extent those cases have not already been separately resolved, Gross & Klein will continue to pursue those cases.
Herring permit holders interested in learning more about the herring permit retirement program can email a request for information to: Herring.Permit.Retirement.Program@grosskleinlaw.com.
The lawsuit is titled, San Francisco Herring Association v. PG&E, No. 14-4393 (N.D. Cal.).
The Consent Decree is available here.